Penthouse publisher sounds off on free speech, Supreme Court

Thursday, July 2, 1998

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).

Penthouse publisher Bob Guccione is upset with the U.S. Supreme Court and he’s not afraid to say so.

Guccione is outraged by the Court’s recent refusal to hear his appeal challenging the Military Honor and Decency Act of 1996 — a federal law that bans the sale or rental of sexually explicit material at military bases.

The Supreme Court’s inaction means the decision upholding the law by the U.S. Court of Appeals for 2nd Circuit will stand.

In an exclusive interview with First Amendment Center Online, Guccione expressed his dissatisfaction with the law and the Supreme Court’s inaction: “There is no question that this law is an act of censorship and a breach of the First Amendment rights of publishers and our soldiers. It is a travesty that the U.S. Supreme Court would not take a case that deals with both First Amendment rights and the rights of our people in the military.

 

“How ironic is it that our government calls upon the men and women in our military to risk their lives protecting our country and our Bill of Rights and then treats them like children?” Guccione asks. “It is shocking that at this moment federal prisoners have more First Amendment rights than our members of the military.”

 

Guccione refers to an order issued in June by a federal judge in New Jersey halting the enforcement of a law that prohibits federal prisoners from possessing sexually explicit material. Though the Military Honor and Decency Act does not ban military personnel from possessing pornography or buying it off base, Guccione says it still smacks of censorship.

 

Guccione scoffs at the government’s stated interest in passing the law — to promote core military values of honor, professionalism and discipline.

 

“We have received literally thousands of letters from enlisted personnel across the globe pleading with us to challenge this law and applauding us for doing so,” he says. “Furthermore, when this law was first passed, a majority of the Department of Defense opposed it, mainly because they said it would hurt recruitment. You know Penthouse is as American as apple pie.

 

“The most heinous thing about the Military Honor and Decency Act is that the First Amendment begins with the words ‘Congress shall make no law;’ yet, Congress makes a law that censors constitutionally protected material.”

 

To Guccione, “no law” means no law. And he has backed his convictions with his considerable pocketbook. “I have spent nearly a half a million dollars challenging this law, including nearly three hundred thousand for the cert. petition alone,” he says.

 

The publisher bristles at the suggestion that his latest First Amendment foray could have been motivated by money.

 

“If you look at the amount of money I have spent in this case, it would take me an entire lifetime to sell enough copies on military bases to compensate,” he says.

 

“This has never been a question of money. It is a question of principle, about preventing censorship from getting a grip in this country and a foothold in our military.”

 

Though his initial interest in the First Amendment arose because “it affected the publication of Penthouse magazine” and the rest of his career, Guccione says that he now passionately defends freedom of expression and fights censorship across the country because “the First Amendment represents the cornerstone of our democracy.

 

“So long as the ordinary citizen has the right to express his or her views or opinions publicly, then we have a chance to make the democratic process work.”

 

Guccione says the Military Honor and Decency Act case represents only one of many free-speech battles he fights all around the country. “We are constantly funding other people’s cases.”

 

For example, Guccione successfully challenged a federal law in Amatel v. Reno that prohibited the Federal Bureau of Prisons from using federal funds to “distribute or make available” to prisoners “commercially published information or material” that is sexually explicit.

 

When asked to compare himself to another publisher of sexually explicit materials who has become a First Amendment icon of sorts — Hustler publisher Larry Flynt — Guccione says “the difference is that Larry Flynt was the defendant in many First Amendment cases; I have been the plaintiff—the one actively initiating battles against censorship. The cases Flynt has been involved with have no doubt contributed to the First Amendment, but you must realize that Flynt did so out of self-defense; I have done so out of respect for free expression and a hatred of censorship.”

 

Guccione says that in his challenge of the Military Honor and Decency Act, Flynt contributed a minimal amount of money. All the attention Larry Flynt has received as a First Amendment defender has been “entirely due to his film—The People vs. Larry Flynt—which grossly misinformed the public about a lot of Flynt’s activities,” Guccione says.

 

As for a big-screen version of his own life, Guccione says: “I don’t have time to do a movie about my life story right now. I have been asked constantly about doing a biography and documentary about my life story or a movie, but I simply don’t have the time now. One day I will, however.”

 

Part of what keeps Guccione busy, he says, is battling new outbreaks of censorship, which he says are “on the rise at the eve of a new millennium.”

 

Why do there appear to be more incidents of censorship? “The increase in censorship is due to the deep relationship between the right wing of the Republican Party and various religious groups who have a strong agenda to stamp out pornography and promote family values,” he says. “These religious groups are responsible for getting many of these Republicans into office and these politicians respond by promoting the legislation politically popular to these groups.

 

“In our society there is too close a connection between church and state. The religious right is imposing its discriminatory values upon the American public. The Founding Fathers were wise to see the need for a separation of church and state.”

 

What would the Founding Fathers have thought of the First Amendment being used to protect explicit sexual expression? “Those who say the Founding Fathers would be appalled if they knew the First Amendment protected sexually explicit material obviously know nothing about Thomas Jefferson and Benjamin Franklin, both of whom were great and avid collectors of pornography,” Guccione asserts.

 

“Pornography is not a new phenomenon. It is as old as humankind itself. It is also the easiest target for the censor because we live today in the most puritanical society in the world. But if the censor can attack pornography, he can chip away at other expression.

 

“We must not let this happen,” Guccione urges, “because the freedom of expression is the most fundamental of all our constitutional guarantees.”

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